Excerpt:sales tax - refund of tax - sections 2 (h), 3 and 18 of madras general sales-tax act, 1939, articles 16 and 62 of limitation act, 1908, section 63 of evidence act, 1872, sections 23 and 25 of sale of goods act, 1930, article 286 (1) of constitution of india and section 80 of code of civil procedure, 1908 - suit against government for refund of money collected by way of tax and for declaration that assessment of tax was illegal - contention that sale did not take place within state so levy was illegal - when railway receipt was made out in name of buyer it became document of title and right of ownership vested in buyer - fact that seller had taken back railway receipt for purpose of giving it to his bankers for collection of price not decisive of locus of sale - few dealings which formed.....chandra reddy, j.1. these appeals are from o. s. 14 of 1950, 44 of 1949 and 23 of 1949 respectively, and raise common questions of law. the parties are the same in all and so they can be disposed of together. two out of the diree suits in which the appeals are brought were instituted against the government for refund of sums of money collected by way of tax from him and the third for a declaration that the assessment of tax was illegal and for an injunction restraining the defendant from collecting the tax. o. s. no. 14 of 1950 giving rise to o.s. no. 568 of 1951 was brought for the recovery of rs. 11,389-0-9 being the tax collected for the period 1944-45 while o. s. no. 44 of 1949 was laid for the recovery of rs. 8,356-0-0 collected in the accounting year 1945-46. the third suit o. s. 23.....

Judgment:

Chandra Reddy, J.

1. These appeals are from O. S. 14 of 1950, 44 of 1949 and 23 of 1949 respectively, and raise common questions of law. The parties are the same in all and so they can be disposed of together. Two out of the diree suits in which the appeals are brought were instituted against the Government for refund of sums of money collected by way of tax from him and the third for a declaration that the assessment of tax was illegal and for an injunction restraining the defendant from collecting the tax. O. S. No. 14 of 1950 giving rise to O.S. No. 568 of 1951 was brought for the recovery of Rs. 11,389-0-9 being the tax collected for the period 1944-45 while O. S. No. 44 of 1949 was laid for the recovery of Rs. 8,356-0-0 collected in the accounting year 1945-46. The third suit O. S. 23 of 1949 relates to the year 1946-47 and is laid for a judgment for a declaration and injunction as stated above. The plaintiff was a dealer in groundnut oil carrying on business at Kurnool. He purchased oil and sold it to various persons outside the State. The goods were transported to places beyond Madras State by rail.

2. It was averred in the plaints that the railway receipts, invoices for the goods and the hundies were lodged with bankers to be discounted and for collection of the price from the buyers to whom the railway receipts were delivered only against payment, and as such the sales did not occur within the province of Madras. Consequently the levy was illegal and the sales-tax authorities had to make good the amounts collected by them from the plaintiff.

3. The answer to these suits was four-fold: (1) civil courts have no jurisdiction to entertain the suits; (2) all the sales were completed within the province of Madras and were therefore properly assessed; (3) there was no sufficient compliance with Section 80 C. P. C. and therefore the suits had to be thrown out; and (4) they were barred by limitation.

4. The trial court negatived the first plea and that is not in controversy here. It dismissed two suits O. S. 14 of 1950 and 44 of 1949 accepting the defences as to limitation though it came to the conclusion that the levy of sales tax to the extent of Rs. 7,203-12-9 in the first suit and Rs. 5370-7-0 in the second suit was illegal as the sales on which the taxes were collected took place, outside the province.

It gave a limited relief in O. S. 23 of 1949 overruling the objection of the defendant in regard to limitation and so want of proper notice under Section 80 C. P. C. This suit was decreed only in respect of Rs. 793-10-6. The plaintiff has preferred these three appeals against those decrees and judgments. The defendants have filed memo of cross objections in A. S. No. 566 of 1951 contending inter alia that the suit notice was not proper and it was also barred by limitation.

5. We shall first take up the plea of limitation. The trial Court held that the suits were barred either by virtue of Section 18 of the Madras General Sales Tax Act (hereinafter called the Act) or under Article 16 of the Limitation Act as they were filed beyond one year. We feel that the view of the Subordinate Judge in regard to both the provisions is erroneous. Section 18 of the General Sales Tax Act applies only to suits for damages and compensation and cannot be extended to cases for the refund of taxes paid to the Government.

In fact the Government pleader conceded that the sections cannot be extended to suits for a reconvey of taxes illegally levied in view of the judgment of a Bench of the Madras High Court in Municipal Council, Dindigul v. Bombay Co., Ltd., 56 Mad LJ 525: (AIR 1929 Mad 409) which was followed by another Bench of same Court in Indian Sugar and Refineries Ltd. v. Municipal Council, Hospet, 1942-2 Mad LJ 663: (AIR 1943 Mad 191) where it was ruled that the recovery of licence fee and profession tax illegally levied was covered by Article 62 of the Limitation Act. He conceded that Section 18 could not be invoked in these cases.

6. We have next to consider whether Article 16 is attracted to these two suits. The period of limitation prescribed by Article 16 is one year and it starts when the payment was made. In order to apply this Article, three conditions should be satisfied; (1) that the payment must be made in protest; (2) it should be in satisfaction of a claim made by the Revenue Authorities; and lastly (3) it should relate to arrears of revenue or demands recoverable as such arrears.

7. It is unnecessary to consider whether the expression 'revenue authorities' would include pales tax officers or whether the tax in question would fall within the clause 'on account of demands recoverable as such arrears,' since it is said that in the instant cases the plaintiff made advance payments under Rule 13 of the Turnover and Assessment Rules.

8. In this situation it could not be posited either that the payments were made under protest or that they were made in satisfaction of a claim made by the Revenue Authorities. Nor is the other condition complied with in these two cases. The statement of the counsel for the appellants is substantiated by Exs. B-1 to B-24 and B-36 to B79 and is endorsed by the learned Government Pleader. We feel these cases come within the operation of Article 62 having regard to the recitals in the plaint. As the actions were raised within three years of the payments they are well within time. This position is not disputed by Mr. Venkatesam appearing for the Government Pleader.

9. As regards the opinion of the trial court that the terms of Section 80 C. P. C. were not fulfilled in O. Section 14 of 1950, we do not think there is any basis for it. The conclusion of the learned Judge in this behalf is founded on the difference in the statements between the suit notice and the plaint. While it is alleged in the suit notice that it was under a mistake that the plaintiff paid the tax, in the plaint it was averred that it was on account of coercion that he had paid the tax. We cannot agree that the difference noticed above has any material bearing on the consideration of the question.

The object of Section 80 is to appraise the Government of the nature of the action that is proposed to be laid against it. The cause of action complained of is in this case the illegal levy of tax and this in addition to other particulars as required by Section 80 has been furnished in the notice. The circumstances under which the tax was collected are not quite material in the decision of the question and so it could not be said that the notice and the plaint are so much at variance as to entail the dismissal of the suit. In this regard, the Government Pleader has not even attempted to support the judgment of the trial Court.

10. We now pass on to the more substantial question as to where the sales were completed. The answer to this, to a large extent, depends on where the property in the goods passed to the buyer. All the sales in these cases could not be said to belong to the same type. On the basis of the railway receipts, invoices and other relevant documents, they were grouped into 4 categories by the trial court - cases (1) where the plaintiff himself was the consigner as well as the consignee; (2) where the plaintiff himself was the consigner and the buyer the consignee (3) where the buyer was the consignor as well as the consignee; (4) where third party was shown as the consignor, the consignee being the plaintiff.

11. The trial court found that in type 1 and 4 the seller remained the owner till payment was made and since the goods were paid for outside the province the sales could not be said to have taken place within the State and therefore not assessable y the sales tax authorities of the province. This decision is not assailed by the defendant and therefore need not be canvassed now.

12. We are left with the other two categories. It is urged by Mr. Ramachandra Rao that the transactions involved in these two types of cases also do not satisfy the definition of sale in the Madras General Sales Tax Act as it stood then, Sale is defined in Section 2(h) of the Act as every transfer of property in goods by one person to another in the course of trade or business for cash or for deferred payment or for other valuable consideration and includes also a transfer of property in goods involved in the execution of a works contract but does not include a mortgage, hypothecation or pledge.

13. Thus, what determines the situs of sale is a place where the property in the goods passes to the buyer. The principles for deciding whether and when the property in the goods is transferred to the buyer are laid down in Sections 19 to 25 of the Indian Sales of Goods Act. Section 19 recites:

'(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parries and the circumstances of the case.

(3) Unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.'

Section 20 is in the following words:

'Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed.

Sections 21 and 22 are not relevant for purposes of this enquiry.

Section 23 provides:

'(1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller the property in the goods, thereupon passes to the buyer. Such assent may be express or implied and may be given either before or after the appropriation is made.

(2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract'

Section 24 does not bear on the problem to be solved in this case.

Section 25 says:

'(1) Whether there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to a buyer, or to a carrier or other bailee for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.

(2) Where goods are shipped and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal.

(3) Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading to the buyer together, to secure acceptance of payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange and if he wrongfully retains the bill of lading the property in the goods does not pass to him.'

It is manifest that prima facie when the goods are delivered to the buyer or to the common carrier to be transmitted to the buyer property in the goods vests in the buyer.

But this is subject to the reservation of the right of disposal of me goods made by the seller. This right of the seller could be proved either by the terms of contract or by appropriation or it could be inferred from the conduct of the parties or the surrounding circumstances. In the absence of any specific agreement or of intention to be gathered in the manner stated above, the buyer becomes the owner of the goods the moment the goods are delivered to him or to the railway which is deemed to be the agent of the buyer for purposes of carrying it to the buyer.

It is urged by Mr. Ramachandra Rao that the seller must be regarded as having remained the owner of the goods till the payment of the price was made, by the buyer at the destination. What is submitted is that after the railway receipts were made out to the buyer they were given to the plaintiff. The latter entrusted them to a banker who discounted the receipts and collected the price through their agents from the buyer before the delivery of the railway receipts. It was further argued that in some cases the railway receipts taken In the name of the buyer were endorsed to the seller.

14. This case of the plaintiff is based on the evidence of P. W. 1 who was a godown keeper of Messrs. Amrit Vanaspathi Co. Ghaziabad and P. W. 8. To the question put to P. W. 1. 'Can you explain why sometimes the name of the consignor and consignee as that Amrith Vanaspathy Company is mentioned in the railway receipts as seen in Ex. A-17,' he answered:

'As the Government of Madras imposed permit system and as we got a quota of permits from the Commissioner of Civil Supplies, Madras, the merchants at Kumool who sold the oil to us had to export the oil to us in our permits. As the permits issued by the Commissioner of Civil Supplies contained our name as consignor and consignee, the oil was booked in the railway on the authority of these permits. These railway authorities write in the railway receipts our names as consignor and consignee by looking into the permits. These railway receipts were endorsed by us to the plaintiff. The plaintiff endorsed these railway receipts to the local banks who in turn endorsed to us when we honoured the bundles.'

P. W. 1 who was a godown keeper of Messrs. Amrit Vanaspathi Co., Ghaziabad and P. W. 6 who was the Assistant Agent of the branch of the Central Bank at Kurnool spoke of the general practice obtaining amongst the merchants who would deliver the railway receipt and the hundi to the bank and after crediting the hundi minus the discounting commission the bank would send it for collection to its local branch at the risk of the consignors and that until the hundi was honoured the railway receipts would not be parted with. It is seen that the last witness has not said anything about the plaintiffs transactions nor has he mentioned any instances. No doubt, P. W. 1 has testified to railway receipts being endorsed by them to the plain-tiff and there was no cross-examination in this regard.

But, it should be remembered that there was no pleading to that effect nor an issue raised. Further, he deposed only with reference to Ex. A-1 which is a statement of goods sold by the plaintiff pre-pared by the counsel. He talked of the railway receipts being endorsed 'by us.' It is unlikely that a godown keeper of one of the buyers would have been deputed for the purpose of taking delivery of the goods at Kurnool, or authorised to make the necessary endorsement. Moreover, he could only speak of transactions with reference to one buyer and does not cover all the sales to persons outside the province. It does not appear from the record as to the value of the sales made to the firm of which P. W. 1 was a godown keeper. So, the evidence of P. W. 1 does not carry the plaintiffs very far.

15. Again, the testimony of P. W. 1 is not admissible as regards the endorsement on the railway receipts. The contents of a document may be proved either by primary or secondary evidence. In this case, secondary evidence was sought to be given of the endorsement on R. Rs. Under Section 63 of the Evidence Act, such evidence could he furnished by some person who had himself made it or seen it. P. W. 1 does not say that he either himself made the endorsement or had it seen being made. As already pointed out, he made a vague statement that these railway receipts were endorsed by them to the plaintiff.

Even otherwise, as mentioned supra, we have no evidence as to the number of transactions or the value thereof which P. W. 1's firm had with plaintiff. The plaintiff does not say anything about the retention of the railway receipts or the endorsement of the same in his favour. He is the person who could throw some light on this aspect of the matter and his reticence in this regard is perhaps explicable on the basis of the present theory being an after-thought.

16. Now, assuming that the plaintiff had taken back the railway receipts for the purpose of giving it to their hankers for collection of the price, this is not decisive of the locus of the sale. This circumstance does not in any way give an indication as to his intention to reserve the jus disponendi. It might only give him the right of lien over the goods. In similar circumstances, a Bench of this Court decided in A. S. Nos. 481 of 1951 and 295, 298 and 993 and 994 of 1952 that the sales took place within the State. The learned Judges constituting the Bench relied on a judgment of a Bench of the Madras High Court in Siddique M. and Co. v. Textile Agencies, Mysore, 1947-1 Mad LJ 249: (AIR 1947 Mad 455).

It was ruled in the case cited that a sale would be completed by the delivery of the goods to the railway for the purpose of transmitting them to the buyer if the seller had not reserved the right of disposal when the railway receipt was made to the buyer and the mere fact that the document of title was retained in the custody of the seller would not stand in the way of the property in the goods passing to the buyer though it might give him an equitable lien over the goods.

17. The correctness of these two rulings is canvassed by Mr. Ramachandra Rao on the ground that they are opposed to the dictum kid down by Lord Sumner in the Kronprinsessan Margareta, The Parama, Etc., (1921) 1 AC 486 which was followed by Madras High Court in Messrs. Gandhi Sons Ltd. v. State of Madras, : AIR1955Mad722 and requested us to refer the matter to a Full Bench.

18. The passage in the first of the two cases relied on by the learned counsel occurs at p. 514:

'In these circumstances what can be inferred as to the passing of the general property? What is there to show an intention to pass that property for anything less than payment, and what motive is there for such an intention? The appellants, M/s. Lundgren and Rollven, have to show that it passed to them and passed, too, before the beginning of the voyage. If it did, then the consignors no longer owned the goods and had nothing to show against them except a draft of their own, which could not be enforced and a bill of lading, which would not entitle them to delivery of the goods, though its retention might seriously inconvenience the owners, the consignees.

Rights to stop in Transitu or to exercise an unpaid vendor's lien need hardly be discussed, for, one question of intention in fact as to which there is a good deal of evidence it would be artificial to assume that the consignors minds were actually determined to the contrary by consideration of legal remedies, of which it is not shown that they had any knowledge, let the legal presumption be what it will ......... Cases, in which it has been held that taking the bill of lading in the shipper's own name negatives any unconditional appropriation to the buyer by the delivery of the goods on shipboard and indicates one conditional on the documents being taken up, can throw only an indirect light on the question here involved. Certainly, no case was found, in which it was held that taking the bill of lading in the buyer's name, while withholding delivery of it until presentation and taking up of the documents would not be, as an appropriation, equally conditional.'

We do not think the doctrine of 1921-1 AC 486 has any relevancy in the context of this inquiry. That dealt with c.i.f. contracts in which no intention to pass the property for anything less than payment was shown. The incidents of the contract that fell to be considered there are different from those of an ordinary contract.

19. Nor does : AIR1955Mad722 contain any principle different from that inculcated in 1947-1 Mad LJ 249 : (AIR 1947 Mad 455) or the judgment of this Court in Santhanna v. State. A. S. Nos. 481 of 1951 and 295, 296. 993 and 994 of 1952: (AIR 1958 Andh Pra 670). The case cited was concerned with c.i.f. and f. o. b. contracts which are, as already pointed out, distinguishable from contracts involved in these anneals. Moreover, what the learned Judges had to consider there was whether the sales were in the course of export within Article 288(1) of the Constitution.

It is stated in the judgment that there were two stipulations in c.i.f. contracts, namely, about price and shipment and payment against documents In those circumstances it was thought that the appropriation of the goods to the contract was not unconditional though the goods were packed to gunny bags and marked with the buyer's initials and for those acts the assent of the buyers could be implied.

20. That the rule stated should be confined to the type of cases dealt with by them appears from the following remarks:

'There cannot now be much controversy as regards the incidents of a c.i.f. or a c. and f. contract. Referring to them Lord Wright said in Smyth and Co. Ltd. v. Bailey, (TD) Son and Co., 1940-3 All ER 60 at p. 67: 'The initials indicate that the price is to include cost, insurance and freight'. It is a type of contract which is more widely and more frequently in use than any other contract used for purposes of sea-borne commerce. An enormous number of transactions, in value amounting to untold sums, are carried out every year under c.i.f. contracts. The essential characteristics of this contract have often been described. The seller has to ship or acquire after that shipment the contract goods as to which, if unascertained, he is generally required to give a notice of appropriation.

On or after shipment he has to obtain proper hills of lading and proper policies of insurance. He fulfils his contract by transferring the bills of lading and the policies to the buyer. As a general rule, he does so only against payment of the price, less the freight which the buyer has to pay. In the invoice which accompanies the tender of the documents on the 'prompt' -- that is the date fixed for payment -- the freight is deducted, for this reason. In this course of business, the general property in the goods remains in the seller until he transfers the bills of lading.'

Another reason why the learned Judges said that there was no transfer of the ownership of the goods was by that time the goods were put on board they had entered the export stream and therefore would be in the course of export. When once the goods started on their journey to a foreign destination they are protected by Article 286 (1) of the Constitution.

The second contract for the delivery of the goods which was on the f. o. b. terms was also said to stand on a similar footing and even in that case the property in the goods passed at the earliest only when goods were put on board. It is under these circumstances it was held there that the property in the goods did not pass to the buyer until the relevant hills were presented to the buyer or in any event until the goods were put on board. So the considerations that pertain to the c.i.f. and f. o. b. contracts are not quite material in regard to the ordinary contracts of sale which are the subject-matter of the present enquiry.

21. Under Section 25(2) of the Sale of Goods Act which is already extracted, when the bills of lading are deliverable to the order of the seller or his agent, the seller is presumed to reserve the jus disponendi. The contracts involved in the cases cited are covered by this sub-section and not of the type in question. Referring to the c.i.f. contracts, it is stated in the Commentary by Pollock and Mulla on Indian Sale of Goods Act at Page 178 thus:

'Accordingly the best way of approaching the consideration of all questions of c.i.f. sales is to realize that this form of the sale of goods is one to be performed by the delivery of documents representing the goods i.e., of documents giving theright to have the goods delivered or the possibleright, if they are lost or damaged, or recovering theirvalue from the shipowener or from underwriters.'This passage discloses the features peculiar to c.i.f.contracts which have been the subject-matter of : AIR1955Mad722 . They relate to sea-bornetrade. There is therefore no inconsistency between the two sets of decisions.

22. When a railway receipt is made out to the buyer it becomes the document of title and vests the right of ownership in the goods in the buyer while in transit.

23. We may here advert to the various factors which place beyond all doubt that the property in the goods was transferred to the buyers within the province of Madras and that the seller had not reserved to himself the right of disposal. The plaintiff had to admit that there were no separate stipulations with regard to the passing of the property in the goods apart from what might be inferred from the correspondence relating to these contracts and trade usage. P. W. 1 said that the railway freight was to be borne by the buyers.

There was a notice in the invoices that thesellers were not responsible for any loss or leakageon the way and that the purchaser should bear thelosses. The creditor was debited with the bill amount on the date of the railway receipt as admitted by the plaintiff as P. W. 3. These are some of theconsiderations which, in our opinion, are conclusive on the question. It follows that the sales coming under categories Nos. 2 and 3 occurred within the province of Madras and were consequentlyproperly assessable and the assessment in regard tothis could not be impugned.

24. We will next proceed to consider the contention raised for the appellants that the whole assessment was invalid by reason of it having included an illegal levy. This is an additional ground raised long after the filing of the appeal taking advantage of the judgment of the Supreme Court in Ram Narain Sons Ltd. v. Assistant Sales Tax Commissioner, (S) : [1955]2SCR483 . The request for permission to raise this ground was not opposed by the learned Government Pleader and we have permitted the appellant to urge it.

Similar request was also granted in A. S. Nos. 281 of 1951 and 295, 296, 993 and 994 of 1952 : (AIR 1958 Andh Pra 670) in this Court. The rule stated in the Supreme Court judgment cited above was that if the assessment was one composite whole relating to the pre-Constitution and post-Constitution periods it wags invalid in toto. We feel that the instant cases fail within the operation of the judgment of the Supreme Court. Some of the dealings, which form the basis of the assessments impeached are taxable while others are not assessable.

The assessments could not be split up as if was a composite order. On the face of the order, it is difficult to separate the legal from the illegal levies. The sales which are not legally assessable have been blended with those that could be properly taxed and the assessment being a single and indivisible one it should be regarded as invalid in toto. In these circumstances, we have to give effect to the submission of the appellants and held that the assessments in all the three cases should be rendered void.

25. In regard to O. S. 23 of 1949 in which it was found that only taxes amounting to Rs. 793-10-6 were levied illegally an argument was pressed upon us that this sum being only an inconsiderable part of the total tax involved in the suit the whole assessment need not be struck down. We feel that this assessment also could not be saved on the principle of de minimus non curat lex in view of the judgment of the Privy Council in Ben-net and White (Calgary) Ltd. v. District of Sugar City No. 5, 1951 AC 786, which was quoted with approval by the Supreme Court in : [1955]2SCR483 . These, the assessment included three dumptors.

The value of these three dumptors which could not be assessed to tax legally was only 3.5 per cent, of the whole amount involved in the taxation. Having regard to this fact, it was urged there that the maxim de minimus non curat lex was applicable. This objection was overruled. Lord Reid who spoke for the court summed up the position thus:

'When an assessment is not for an entire sum, but for separate sums, dissected and earmarked each of them to a separate assessable item, a court can sever the items and cut out one or more along with the sum attributed to it, while affirming the residue. But where the assessment consists of a single un-divided sum in respect of the totality of property treated as assessable, and when one component (not dismissible as 'de minimus'), is on any view not assessable and wrongly included, it would seem clear that such a procedure is barred and the assessment is bad wholly.'

In the light of this statement, of law, it is difficult to affirm the residue although it forms the major part of the assessment.

Assessment which is bad in part is infected throughout and should be treated as invalid. For these reasons, we must hold that all the assessments are invalid in toto. This does not preclude the taxing authorities from reassessing them if so advised and if permissible in law. The appeals are therefore allowed. But having regard to the fact that we allowed the appellant to a raise a new ground at the time of arguments and other circumstances we think it is a fit case in which the parties should bear their own costs.

25a. There remains for consideration the cross-objections in A. S. 566 of 1951. The only objection pressed upon us is the one bearing on Section 80 C. P. C. It was maintained, by Mr. Venkatesam for the Government Pleader that the notice issued by the appellant did not fulfil the terms of Section 80 for the reason that it was issued before the cause of action had arisen. The argument is that at the time of the issue of notice an appeal filed by the appellant before the District Commercial and Tax Officer was pending and there being no final order the order of the D. C. T. O. could not form the basis of the suit notice. When an order of assessment is challenged by way of an appeal under Section 11 of the Act it is the order passed in appeal that becomes final and since no finality attached to the original order which is challenged in appeal that order cannot furnish a cause of action within the meaning of Section 80, continued the learned Government Pleader,

26. We do not think we can subscribe to this theory. It is true that in this case an appeal was filed questioning the validity of the order of the D. C. T. O. hut it could not be postulated that the appellant should wait even for the issue of a notice under Section 80 C. P. C. till the disposal of the appeal. The order complained of in this case has furnished a cause of action to the plaintiff. There is ample authority for this view of ours. In Juscurn Boid v. Pirthichand Lal, ILR 46 Cal 670; (AIR 1918 PC 151), the Privy Council in considering the starting point of limitation under Article 97 of the Limitation Act which provided a period of three years limitation for suit for money paid on existing consideration which afterwards failed, remarked that the time began to run from the date the sale was reversed by the trial Court in its entirety.

Their Lordship added that whatever might be the theory under other systems of law, under the Indian Law and Procedure, the presentation, of an appeal did not suspend the original decree nor in its operation interrupted where the decree in appeal was one of dismissal. The suit which gave lise to an appeal before their Lordships was brought by a decree-holder for the recovery of purchase money paid by him when the sale was set aside. The question was whether the starting point of limitation was the date of the reversal of the sale by the trial court or the decree of the appellate Court affirming it and their Lordships expressed view stated above.

27. This was followed by Justice Stone in Baijnath Karnani v. Vallabhadas Damani, 62 Mad LJ 566: (AIR 1932 Mad 661). It was held in that case which considered the applicability of Article 117 of the Limitation Act, that time runs from the date of the judgment of the court of first instance and not that of the appellate Court. On these authorities, we are inclined to the view that the original assessment order afforded a cause of action to the appellant and could form the basis of a notice under Section 80.

28. It was alternatively contended by Mr. Venkatesam that it was stated in the notice that an appeal was filed against the order complained of and that a suit will be filed for the reliefs mentioned therein only in the event of the appeal going against him and this indicates that the plaintiff himself did not treat the original order as given him cause of action. It was added by him that as laid down by the Privy Council in Bhagchand Dagdusa v. Secretary of State, ILR 51 Bom 725: (AIR 1927 PC 176), the provisions of Section 80 are explicit and mandatory and do not admit of exceptions and implications and should be strictly construed. We do not think that this submission of the learned counsel can prevail.

The scope of the principle enunciated in that ruling should be limited to cases where there is no compliance with Section 80, C. P. C. The terms of notice under Section 80 should not be taken in a narrow sense, the object of that section being merely to inform the defendant of the grounds or complaint. Simply because it is stated that an appeal was filed against the order which was sought to be assailed in a suit, it does not follow that the plaintiff disregarded the order of the D. C. T. O. In fact, it is asserted in the notice that that order was illegal. This argument therefore is unsubstantial.

29. It was lastly urged that it was a conditional notice in that it was mentioned that a suit would be filed only if relief was not given to the plaintiff by the appellate authority. This contention is equally untenable and cannot be upheld. In that sense, every notice issued under Section 80 should be deemed to be a conditional one because it will be stated that the suit would be filed only if the wrongs complained of by the plaintiff are not remedied. The condition in this case also is of the same description. This circumstance does not in any way detract from the validity of the notice. The notice is quite in order and there is no defect which is fatal to the suit. Hence the memorandum of cross-objections is dismissed with costs.

30. (These appeals and the memorandum of cross-objections having been set down for being mentioned this day, the Court made the following)

ORDER

Chandra Reddy, J.

31. There is absolutely no justification fordeleting the order regarding costs. We have deliberately disallowed costs to the plaintiff on theground that the point on which he succeeded to alarge extent in one appeal and to a substantial extent in the other was allowed to be raised for thefirst time at the time of the hearing of the appeals.There are therefore no grounds to review our orderregarding costs. Further we fail to see how thejudgment could be reviewed without an applicationbeing filed under Order 47, Rule 1, C. P. C. This doesnot deserve any consideration.